by Liza Hirsch and Janine Solomon

Legal Analysis

Brief History of School Discipline Reform in Massachusetts

In Massachusetts and nationwide, one of the most commonly used responses to students who exhibit misbehavior is to exclude them from school, effectively depriving them of education. While out-of-school suspension has been used in schools as a form of discipline since the 1960s, it was not until the 1990s, during the era of “tough on crime” and zero tolerance policies, that out-of-school suspension became a widespread approach for addressing minor misbehavior. In keeping with this trend, the Massachusetts legislature enacted the Education Reform Act of 1993 which provided principals with broad authority to exclude students from school. Researchers began to express concern that exclusion from school not only did not improve children’s behavior, it actually made it more likely that those students would misbehave and accrue additional suspensions.[1] Moreover, research began to demonstrate that students of color and students with disabilities were more likely to be suspended from school.[2] Over time it has become increasingly clear that children who are repeatedly excluded from school face devastating consequences: they are less likely to reach learning milestones and more likely to fall behind, repeat grades, drop out of school and not graduate, and/or have contact with the criminal justice system, pushed into a trajectory known as the “school-to-prison pipeline.”

In response, Massachusetts Advocates for Children (MAC) joined with other concerned advocates to form the Education Law Task Force (ELTF)[3]. After years of advocacy by ELTF, State Representative Alice Wolf, and other advocates, An Act Relative to Student Access to Educational Services and Exclusion from School (Chapter 222 of the Acts of 2012) [4] was enacted and took effect in 2014.[5] The law created new due process and data reporting requirements for school districts regarding the exclusion of students from school for minor misbehavior. The underlying principle of the law is to make exclusion from school a last resort, especially for all but the most serious offenses. Districts are required to provide notice and a hearing prior to an out-of-school suspension, absent emergency circumstances. The law also requires all students who are excluded from school to have access to assignments, quizzes and tests, and for students who are long-term suspended or expelled to receive tutoring, online coursework or other alternative education services.[6] The law and regulations additionally require the Massachusetts Department of Elementary and Secondary Education (DESE) to collect disaggregated school discipline data from school districts[7], post the data, analyze the data, and provide support to schools that exclude high numbers of students or disproportionately suspend students of color or students with disabilities.

Current Implementation and Challenges

Advocacy by the ELTF and others was essential not only to the passage of the law, but to its implementation. The ELTF provided substantial input into the implementing regulations, by submitting draft regulations, commenting on the proposed regulations, and testifying to the Board of Elementary and Secondary Education.[8] Today, four years into the implementation of Chapter 222, the ELTF, through its Chapter 222 Coalition, has grown and continues to collaborate with DESE regarding the implementation of the law. Since the law took effect, DESE has posted school discipline data disaggregated by district and school for the 2014-15, 2015-16 and 2016-17 school years. The data show some improvement in lowering the rates of suspension, especially in the first year of the law’s implementation. Some schools and districts have made meaningful changes to lower the rates of suspension, while others have not demonstrated improvement. The data also show that while suspension rates have decreased for students of color and students with disabilities, both groups continue to be suspended at higher rates than their peers.

In adherence with the regulations, DESE has established a process for identifying schools and districts that demonstrate overreliance on suspension and/or disparate rates of suspension by race, ethnicity, or disability. These schools and districts participate in the Rethinking School Discipline Professional Learning Network (PLN), a forum in which educators and administrators can learn with and from each other, reflect on their own school discipline data, and draft action plans which aim to reduce reliance on exclusion as a form of discipline. The plans include approaches for promoting positive school climate and implementing positive behavioral supports and alternatives to suspension such as restorative justice. The ELTF has provided input into the action plan templates and offered feedback regarding the process through which schools and districts are selected for participation in the PLN.

In addition to efforts to implement Chapter 222, DESE is working to foster whole school culture change through implementing the statute titled, the Safe and Supportive Schools Framework,[9] which offers guidance for districts to develop school cultures based on support rather than exclusion of students. As part of this law’s implementation, DESE has worked in collaboration with MAC’s Trauma and Learning Policy Initiative to provide PLN participants with professional development opportunities on how to create safe and supportive schools.

Although the initial years of implementation of Chapter 222 have yielded positive efforts by many schools and districts to reduce reliance on suspension and to address disparities by race, ethnicity, and disability, there continue to be implementation challenges. The integrity of data reporting by schools and districts is of utmost importance to ensure the fidelity of the law’s implementation, yet attorneys representing parents and students continue to observe the underreporting of suspensions by many school districts. One common practice by school districts involves calling parents to ask them to pick up their child due to misbehavior, without adhering to due process requirements or documenting the exclusion as a suspension. This unlawful practice, often utilized repeatedly by schools, is a burden to parents, even to the point of causing job loss.

A further challenge is the lack of resources at both the state and local levels to implement the law. DESE has limited capacity to identify and provide support to all of the schools and districts in need, and while many schools and districts recognize the need to reduce reliance on suspension, they lack the resources, training, and in-classroom modeling needed to effectively implement alternative practices. Even when schools attempt to implement alternatives for managing challenging student behavior, without a cohesive and coordinated approach, these initiatives are often not sustainable. Reducing school exclusion in a meaningful way requires the implementation of alternatives (e.g., restorative justice) and whole school culture change to create an environment that is inclusive, equitable, safe, and supportive of all students. Effective models incorporate the role of trauma in learning, address the individual needs of students with disabilities, and account for the influence of institutional racism and racial bias in disciplinary practices.

The ELTF/Chapter 222 Coalition looks forward to continued collaboration with DESE to: (1) ensure meaningful oversight and accountability for all schools and districts that are not in compliance with the law; and (2) ensure teachers and school leaders have the training and support to reduce suspensions through alternative practices and whole school culture change. By virtue of Chapter 222, in conjunction with the Safe and Supportive Schools Framework, Massachusetts is well positioned to be a national leader in reducing reliance on school exclusion and keeping our most vulnerable students in school and engaged in learning.

[3] The ELTF is a statewide group of attorneys, advocates, young people, and organizers, convened by MAC, working to address educational issues facing low-income children in Massachusetts. The ELTF pays particular attention to school discipline, and successfully advocated for the passage of Chapter 222.

[6] Prior to the enactment of this law, children expelled from school were not legally entitled to receive an education from a public school in the Commonwealth.

[7] Moreover, in April 2018, the Massachusetts Legislature enacted the statute, “An Act Relative to Criminal Justice Reform” which includes several provisions applicable to schools, including the requirement that school-based arrests, criminal citations, and court referrals be reported to DESE for publication in a “like manner” as school discipline (e.g. disaggregated by race, disability, and gender).

Liza Hirsch is a staff attorney with Massachusetts Advocates for Children where she represents families in school discipline and special education matters.Janine Solomon is Managing Attorney/Senior Project Director of Massachusetts Advocates for Children. She is a co-chair of the Education Law Task Force.